47:1225(113)CA - - SSA, Office of Hearings and Appeals, Arlington, Virginia and AFGE Local 215 - - 1993 FLRAdec CA - - v47 p1225
[ v47 p1225 ]
The decision of the Authority follows:
47 FLRA No. 113
FEDERAL LABOR RELATIONS AUTHORITY
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
July 16, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by posting vacancy announcements containing new weights and factors for four clerical bargaining unit positions that were the subject of a pending dispute before the Federal Service Impasses Panel (the Panel) and failing to complete the mediation-arbitration proceedings ordered by the Panel. No exceptions were filed to the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. The Respondent filed exceptions to portions of the Judge's recommended Order. The General Counsel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute by posting vacancy announcements containing new weights and factors for four clerical bargaining unit positions that were the subject of a pending dispute before the Panel and failing to complete the mediation-arbitration proceedings ordered by the Panel.(*) However, for the following reasons, we modify the Judge's recommended Order.
The Respondent contends that paragraphs 2.(a) and (b) of the Judge's recommended Order are contrary to Federal law, applicable regulation, and Authority precedent because, in the Respondent's view, the recommended Order directs an arbitrator "to change the weights and factors established by management should he/she find inappropriate those weights and factors in the February 10, 1992 announcements." Exceptions at 3. The Respondent asserts that, if this occurs, "the arbitrator will clearly decide substantive aspects of the [Respondent's] crediting plan" and thereby "violate management's rights and be inconsistent with  law and applicable [G]overnment[-]wide regulations." Id. The General Counsel argues that the exceptions are "premature and speculative." Opposition at 2. According to the General Counsel, if an "arbitration award is ultimately issued and [the] Respondent believes it to be contrary to the Statute, it may avail itself of the statutory procedures in place for such a challenge." Id.
Contrary to the Respondent's contention, nothing in the recommended Order requires an arbitrator to make changes in the disputed weights and factors in violation of law, regulation, or Authority precedent. However, to the extent that the recommended Order requires an arbitrator to order specific relief, we have modified the Order to require the Respondent to comply with the decision reached at mediation-arbitration, to the extent consistent with law, rule, and regulation. Such a remedy is consistent with remedies ordered in cases where a respondent has failed to cooperate in impasse proceedings. See generally Veterans Administration, 23 FLRA 661 (1986) and Department of the Treasury and Internal Revenue Service, 22 FLRA 821 (1986) (respondents were ordered to comply with decisions reached at interest arbitration and by the Panel).
We note that the Panel's Order states that the mediator-arbitrator "may decline to consider any proposal about which either party contends it has no obligation to bargain." General Counsel's Exhibit No. 3 at 1 (citing Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)). To the extent that paragraph 2.(a) of the recommended Order would not permit the mediator-arbitrator to decline to consider any such proposal, we have modified that portion of the Order. We have also modified the Order to clarify that the Respondent had a duty to bargain over only the impact and implementation of the instant changes in weights and factors. See American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1142-43 (1988) (management's right to select under section 7106(a)(2)(C) includes the right to determine the selective factors of a position).
For the foregoing reasons, we adopt the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute and we issue the following remedial Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Office of Hearings and Appeals, Arlington, Virginia, shall:
1. Cease and desist from:
(a) Assigning new weights and factors to the evaluation criteria of four bargaining unit positions without completing bargaining with the American Federation of Government Employees, Council 215, AFL-CIO, the exclusive representative of its em